aT ae) DE RORL Y Op ILRINOES 
URBAHA 


Robert Clarke & Co., Printers.) {March, 1894. 
felony: RI SNR SN I ORS TR AA AR WR HE A, CAA ES MGS TRE SSNS ROLES LEDER LUE LIE HR RIG NEE TY LI DET POT AS SRE 


SUPREME CourT OF OHIO. 


The Cincinnati Inclined Plane Railway Company, 


; | Plaintiff in Error. 
No. 3,872.) vs. 


The City of Cincinnati, 


Defendant in Error. 


STATEMENT OF CASE AND POINTS FOR 
ORAL ARGUMENT. 


By E. A. FERGUSON, 
Counsel for Plaintiff in Error. 


Robert Clarke & Co., Printers.) (March, 1894. 


SUPREME CourRT OF OHIO. 


The Cincinnati Inclined Plane Railway Company, 


Plaintiff in Error. 
No. 3,872.] eyes ye: 


The City of Cincinnati, 


Defendant in Error. 


STATEMENT OF CASE AND POINTS FOR 
ORAL ARGUMENT. 


By HE. A. FERGUSON, 
Counsel for Plaintiff in Hrror. 


STATEMENT OF THE CASE. 


This action was commenced on December 12, 1890, by 
- Theodore Horstman, city solicitor. The object and prayer 
of the petition is twofold: 
First. To recover car license and percentage of gross 
: earnings, aggregating $43,000, with interest on the various 
items making up the aggregate, from dates specified in the 
petition and precipe. 

Second. Enjoining the railway company, defendant be- 
low, from maintaining and operating its cars upon more 
than one track on Auburn street, between Mason and Vine 


2 


streets, and from maintaining its tracks or operating its 
cars upon any of the said tracks on Main street, Court, 
Walnut, or Fifth streets, and for such other relief as in 
equity the city, plaintiff below, may be entitled to. 

The railway company was organized on the 31st of 
April, 1871, under the act of May 1, 1852, entitled “An 
act to provide for the creation and regulation of incorpo- 
rated companies in the State of Ohio,” for the purpose of 
constructing a railroad, the termini of which were to be in 
the City of Cincinnati, and the village of Avondale, in 
Hamilton county. 

1 Swan & C. 271... 
Exhibits 17 and 18 to bill of testimony; printed 
Record, pp. 81, 82, 88, and 84. 


On February 23, 1889, the terminus of the company’s 
road, by a vote of its stockholders, duly certified to the 
secretary of state, was extended from its then northern 
terminus at the Zoological Garden, in Avondale, to the 
village of Glendale, in the same county. 

Exhibit 41 to bill; printed Record, pp. 140, 141, and 
142. 


On March 380, 1877 (74 Ohio L. 66), the legislature 
passed an act providing: 


' “That any inclined plane railway or railroad company hereto- 
fore or that may hereafter ,(be) organized under the act of May 1, 
A. D. 1852, entitled ‘An act to provide for the creation and regula- 
tion of incorporated companies in the State of Ohio,’ shall have 
power to hold, lease, or purchase, and maintain and operate, such 
portion of any street railroad leading to or connected with the in- 
clined plane as may be necessary for the convenient dispatch of its 
business, upon the same terms and conditions on which it holds, 
maintains, and operates its inclined plane; provided, that no other 
motive power than animals shall be used on the public highways 


3 


occupied by such street railway company without the consent of 
the board of public works in any city having such a board, and 

the common council or the public authority or company having 

charge or owning any other highway in which such street railroad 

may be laid ; and provided, that no inclined plane railway or railroad 

company shall construct any track or tracks in any street or high- 

~ way without first obtaining the written consent of a majority of the 

property holders on the line of such proposed track or tracks, rep- 

resented by the feet front of lots abutting on the street or highway 

along which such track or tracks are proposed to be constructed.” 


In 1871, the railway company constructed, and has 
_ ever since maintained and operated, an inclined plane rail- 
way from the head of Main street to the top of the hill 
known as * Mount Auburn,” in said city, and subsequently, 
by virtue of grants from the public authorities or the- 
owners thereof, constructed or acquired the street railways 
described in the petition and answer, extending from Fifth 
and Walnut streets to the foot of the inclined plane, and 
from the head of the same through the village of Carthage 
to the County Fair Grounds. 

The inclined plane was built on the private property 
of the company, and the permission to cross above certain 
streets and occupy a portion of Locust street, at the head 
of the plane, was sought and granted under the act of 
May 1, 1852, by a resolution passed by the common coun- 
eil of Cincinnati, on the 16th day of June, 1871, which 
reads as follows: 


“A Resolution—To authorize the Cincinnati Incline Plane Com- 
pany to cross Miami, Baltimore, and Dorsey streets, and to occupy 
so much of Guilford or Locust street, between Dorsey and Saun- 
ders streets, extended as may be necessary in constructing their rail- 
way upon the following terms and conditions : 

1. The company to pay any damages for which the city may 
be made liable for any injury to persons or property on account of 
such use of the streets. 

2. The said railway so to be constructed as not to obstruct the 


4 


ordinary passage along the streets, and the mode in which the work 
is done, to be approved by the city civil engineer, and the work to 
be done to the satisfaction of said engineer. 

3. This grant to continue only for the term of twenty (20) 
years from the date of the passage hereof; provided, that this reso- 
lution shall not take effect until said company shall file a written 
acceptance of the same with the city clerk.” 


The written acceptance required by the above resolu- 
tion was filed on the thirtieth day of June, 1871. 
The railroads in the streets leading to or connected with 


the inclined plane were constructed or acquired as follows: 


‘‘ Under and by virtue of an ordinance passed October 11, 
1884, there was constructed and operated a street railroad route 
known as ‘ Route No. 8,’ along the following streets of the City 
of Cincinnati: Commencing at Fifth and Walnut streets, thence 
along Fifth to Main, north on Main to Liberty, east on Liberty 
to Price, north on Price to Ringold, west on Ringold to a street now 
called Josephine street, thence north on Josephine to Saunders, 
west on Saunders to Auburn avenue, north on Auburn ayenue to 
the north corporation line at McMillan street, returning by the 
same route to Court street, thence west on Court. to Walnut, south 
on Walnut to Fifth street, the place of beginning; that that part 
of the route on Auburn avenue from Mason street to Vine street was 
a single track; that said Route No. 8 was constructed under a grant 
from the City of Cincinnati to Porteus B. Roberts; that the City 
of Cincinnati on or about August 1865, authorized the said Roberts 
to transfer all his rights and interest in said Route No. 8 to the 
‘Mt. Auburn Street Railroad Company,’ a corporation existing un- 
der the laws of the State of Ohio, which transfer was accordingly 
made by said Roberts to said company; that said company became 
insolvent after the construction and operation by it of all of said 
Route No. 8, including its single track on Auburn avenue from 
Mason to Vine street; that said Route No. 8 was thereupon sold 
to Thomas B. Wilson, Henry G. DeForest, and Wm. Austin Good- 
man at master commissioner’s sale, on January 2, 1873, under 
judicial proceedings had in case No. 25,408, in the Superior Court 
~ of Cincinnati, wherein Jared N. Post and Thomas B. Wilson were 
plaintiffs and Thomas A. Nesmith and the said Mt. Auburn Rail- 
road Company and others were defendants; said deed is recorded 


oe 


in Book No. 408, page 572, of the Hamilton County Land Records ; 
that afterward, to wit, on March 4, 18738, the said Thomas B. Wil- 
son acquired by deeds of quitclaim all the right, title, and inter- 
est of said Henry G. DeForrest and Wm. Austin Goodman in and 
to said Route No. 8; said deeds being recorded in Book 408 ‘on 
pages 574 and 573 respectively of the Hamilton County Land 
Records; that afterward, to wit, on the 10th day of March, 1873, 
the said Thomas B. Wilson by deeds of quitclaim conveyed to 
Joseph S. Hill, George A. Smith, and James M. Doherty all of 
said ‘ Route No. 8,’ said deed being recorded in Book 408, page 
576, of the Hamilton County Land Records.” 


At the time of the purchase of Route No. 8, it was a 
single track road, with turn-outs on Main street, between 
Court and Liberty streets, but in the year 1873 a second 
additional track was laid by Smith, Hill and Doherty on 
Main street, between Liberty and Court streets, under an 
ordinance of the city council, passed November 14, 18738, en- 
titled “an ordinance authorizing the proprietors of Route 
8 street railroad to lay an additional track on Main street 
from Liberty street to Court street.” 

Exhibit 16, Record, pp. 79 and 80. 


In 1875, permission was given the Cincinnati Inclined 
Plane Company, under the 12th section of the act of May 
1, 1852, now section 3283 of Revised Statutes: 


‘To use and occupy for a period of thirty (380) years, with a 
double track, Locust street, commencing at the inclined plane, 
thence north to Mason street and Mason street from Locust street 
east to Auburn street, and Auburn street with a single track from 
Mason street northwardly to Vine street, and Vine (formerly Wash- 
ington) street by a double track to the corporation line of the city 
at Avondale.” 

Exhibit 20, Record, p. 87. 


The tracks so authorized were constructed by the com- 
pany, the original track of Route No. 8,on Auburn avenue 
north of Mason street and its turn-outs, being taken up 


6 


and removed to its proper position, so that there was a con- 

tinuous double track from the head of the inclined plane 

to Avondale, the north corporation line of the city. 
Doherty’s testimony, Record, p. 82. 


For some time after the control of Route No, 8 had 
passed into the control of Smith, Hill, and Doherty, the 
cars on Route No. 8 were run as provided in the ordinance 
establishing Route No. 8, up Liberty street and around 
Prospect Hill to Auburn avenue, but the inclined plane 
company having in the year 1873, under the permission 
given it by an ordinance passed December 1, 1871, entitled _ 
‘an ordinance authorizing the extension of the Cincinnati 
Inclined Plane Railway, from the head of Main street to 
Fifth street market space,” constructed double tracks from 
the foot of its inclined plane to Liberty street, where they 
joined the tracks of Route 8. Smith, Hill, and Doherty 
abandoned that portion of Route 8, up Liberty street east 
of Main and around Prospect Hill to Auburn avenue, be- 
cause, on account of the long and heavy grades and the 
slipping of the streets, it had become dangerous, and 
passengers preferred to take the incline plane. 

Doherty’s testimony, Record, pp. 83, 84; Exhibit 19, 
pp. 85, 86. 


After the passage of said act of March 30, 1877, to wit, 
on June 19, 1877, said) George A. Smith, Joseph 8. Hill, 
and James M. Doherty, by an indenture, leased, upon the 
terms and conditions therein named, to the railway com- 
pany, all and singular, the street railroad owned by them 
known as “ Mt. Auburn Street Railroad,” also known as 
“Route No. 8,” together with all tracks, rights of way, 
privileges, and franchises, and all the real and leasehold 


7 


estate connected and used therewith for stables, depots, 
stations, or otherwise, to hold the same from July 1, 1877, 
for ninety-nine years, renewable thereafter forever, upon 
the same terms and conditions which the company held 
the inclined plane railway. Said lease contained a cove- 
nant that the company would operate said ‘* Route No. 8” 
as a part of its own road and giving the company the 
privilege of purchasing said “ Route No. 8” at any time 
during said lease. Said lease is recorded in Lease Book 
57, page 550, of the Hamilton County Land Records. 

The inclined plane railway company availed itself of 
the privilege of purchase in the years 1889 and 1890 by 
deeds, duly recorded in the recorder’s office of Hamilton 
county, prior to the commencement of this action. 

Exhibits 86 and 87; Record, pp. 180 and 1382. 


Prior to June, 1889, the cars were drawn by horses 
or mules. 
Littell’s testimony, printed Record, p. 45. 


On September 24, 1885, the board of public works, 
under and by virtue of the act of March 380, 1877, passed 
a resolution consenting to the use by the defendant either 
of electricity, cable, or compressed air as a motive power 
“upon the highways in which the street railroads con- 
nected with its incline plane, and held and operated by it 
are laid,” on condition that defendant gave bond in $25,000 
to hold the city harmless from any damages to persons 
or property arising out of the use of such motive power, 
which bond was duly given and accepted. 

Exhibit 40 to bill of exceptions, pages 135-6 of 
printed Record. 


8 


On October 10, 1888, the railway company, reciting 
the resolution of September 24, 1885, made application to 
the board of public affairs, the successors of the board of 
public works, stating that it had decided to use electricity 
as a motive power on its road, and requesting permission 
to erect along’its lines the poles, wires, and other appli- 
ances necessary to operate its road by electricity. 

Exhibit 40 to bill of exceptions, pages 135, 136, of 
printed Record. 


On October 24, 1888, the board of public affairs, under 
and by virtue of the said act of March 30, 1877, and in 
furtherance of the grant made by the board of public 
works, gave the defendant permission to erect along the 
entire length of its road the poles, wires, and appliances 
necessary to operate and maintain its entire line from Fifth 
aud Walnut streets to the Zoological Garden as an electric 
road, in accordance with plans and specifications of the 
Sprague system submitted to the board. 

See Exhibit No. 41 to bill of exceptions, pages 138, 
139, printed Record. 


In the Sprague system of electric railways, the elec- 
tricity used to operate the motors under the cars is con- 
veyed to them by a single overhead wire suspended over 
the middle of the street, along the underside of which runs 
a trolley-wheel on a single mast attached to the car, mak- 
ing electric connection between the overhead wire and the — 
motor of the car, and allowing the current to pass down 
through the motor and on to the track, the rails of which 
are connected by a copper wire to form a metallic circuit, 
whence some of it returns directly to the dynamo generator 
at the power-house and a part escapes into the earth, the 


9 


common receptacle of all unconfined electricity. In addi- 
tion to the overhead trolley wire, which is supported by 
guide wires from iron posts erected on the curb at regular 
intervals, there is what is called a feed wire strung along 
on these posts for the purpose of keeping up the required 
quantity of electricity on the trolley wires. 

On November 23, 1888, the railway company entered 
into a contract with the Sprague company for the con- 
struction of the Sprague system. Littell’s testimony, 
printed Record, p. 46. 

In December of the same year the copper-wire rail 
connections were made, and in the spring of 1889 the poles 
and wires were erected, all of this work being done under 
the supervision of the engineer of the board of public 
affairs. About the beginning of June, 1889, it put its 
street railways in successful operation under the Sprague 
system as far as the Zoological Garden. Littell’s testi- 
mony, p. 52 of printed Record. 

When this action was commenced, December 12, 1890, 
the railway company was ready and had been from August 
of that year, to operate its extension along the Carthage pike, 
under a grant of the county commissioners, made on March 
23, 1889, as modified on September 7, 1889 (Exhibit 42 to 
bill; Record, p. 142), with the necessary appendages and 
appurtenances of the Sprague electric system. Littell’s 
testimony, Record, p. 55. 

The following agreement was entered into, subject to 
exception : 


‘* It is agreed between counsel herein that there are two mort- 
gages given by the Cincinnati Inclined Plane Railway Company as 
follows : 

The first, dated January Ist, A. p. 1879, recorded in mortgage 
book 423, page 238, Hamilton county, Ohio, Records, to Henry 
Peachy and William Goodman, upon all and singular the railways, 


10 


rails, bridges and real estate and all the tolls, incomes, issues and 
profits to accrue from the same or any part thereof, belonging to or 
held by said company, and all and singular the cars and rolling- 
stock and also all and singular the franchises and property, real and 
personal, of said company, including said leased railway, together 
with all the rights, easements, incidents and appurtenances unto 
the hereby granted premises belonging or in anywise appertaining, 
to secure an issue of $125,000.00 of bonds due January 1, 1899. 

The second, dated January Ist, 4. D. 1889, recorded in mort- 
gage book 5638, page 465, Hamilton county, Ohio, Records, to the 
Louisville Safety Vault and Trust Company, upon all and singular 
the inclined plane railway of the said company, including the ma- 
chinery, engines, boilers, cars, tools and fixtures connected there- 
with, and the real estate and right of way upon which the same are 
situated in the City of Cincinnati, Ohio, and also the street railway 
known as Route No. ‘ Hight’ in- said city, theretofore convey to 
said Cincinnati Inclined Plane Railway Company by lease from 
George A. Smith, Joseph S. Hill, and James M. Doherty, dated 
June 4, 1887, recorded in lease book No. 57, page 550, of Hamil- 
ton county, Ohio, Records, and all the street railroads owned or held 
by said company, together with the electric plant, poles, and wires 
and machinery connected therewith, and all cars and rolling-stock, 
tracks, easements, rights of way, animals, rights, privileges and 
franchises of said company, and all real and leasehold estates owned 
and used by the said company, and all other property, rights, privi- 
leges and franchises then owned or which might be thereafter ac- 
quired by said company, and all tolls, rents, income, and profits and 
claims and demands of every nature to be thereafter acquired by 
said company to secure an issue of $500,000.00 of bonds due Janu- 
ary 1, 1914.” Pages 42 and 43 of printed Record. 


This cause was tried May 8, 1892, and was reserved by 
the judge at special term for hearing to the general term, 
where the following decree was entered, October 21, 1898. 
Printed Record, pp. 18, 19, 20. 7 


‘«This cause came on for hearing as reserved from special term 
upon the certified bill of evidence herein, the original pleadings and 
papers, and was argued by counsel; on consideration whereof the 
court find on the issues joined for the plaintiff, and that defendant, 
the Cincinnati Inclined Plane Railway Company, at the time of 


11 


the commencement of this action was unlawfully maintaining and 
operating in the City of Cincinnati a street railroad by double track 
on Main street between Mulberry street and Court street; by single 
track on Court street between Main street and Walnut street; by 
single track on Walnut street between Court and Fifth street ; by sin- 
gle track on Fifth street between Walnut and Main streets, and by 
single track on Main street between Fifth and Court street, together 
with the necessary poles, wires and other appliances for the operation 
of the same by electricity as a motive power; further, that at the 
time of the commencement of this action said defendant was unlaw- 
fully maintaining and operating in the City of Cincinnati more 
than one street railroad track on Auburn street between Mason 
and Vine streets, and thereupon defendant moved the court to set 
aside its findings herein and for a new trial upon the ground that 
said findings and the judgment of the court thereon are and each 
of them is contrary to the evidence and contrary to law and that 
the same ought to have been in favor of the defendant and against 
the plaintiff, which said motion the court overruled, to which ruling 
of the court defendant at the time excepted and presented to the 
court its bill of exceptions herein, which being found by the court 
to be true, is allowed and signed and on motion is hereby made part 
of the record of the case. 

Wherefore it is adjudged and decreed that the defendant be 
and the same is hereby perpetually enjoined from maintaining any 
of its said tracks, poles, wires or said appliances in Main street, 
Court street, Walnut street or Fifth street, and from operating any 
of its cars over any of the said tracks and also be perpetually en- 
joined from maintaining and operating more than one street railroad 
track on Auburn street between Mason and Vine streets. 

The court further finds that defendant is indebted to plaintiff 
for a license fee of $100 per annum for each car operated over any 
of the tracks of street railroad route No. 8, as described in plaint- 
iff’s petition, between the years 1877 and 1884 inclusive, and the 
court further finds that it was agreed by counsel for plaintiff and 
defendant in open court that if this court should determine that 
the defendant was liable for any unpaid license fees or percentage 
on gross earnings, as claimed in the petition, the amount of the 

same should be reserved for future ascertainment by a master, or 
otherwise, as the court should direct. 

Wherefore, it is ordered, adjudged, and decreed that the cause 
be remanded to the Superior Caer in special term for trial, for the 


LIBRARY 
UNIVERSITY me wrinnre 


12 


purpose of determining the amount in money which plaintiff is en- 
titled to recover from defendant. 

It is further ordered that the operation of this decree be and 
the same is hereby stayed for the period of six months from the 
date hereof, with liberty upon the part of defendant to apply for 
an extension of said time, to which order staying the operation of 
this decree plaintiff excepts.” ] | 


PETITION IN ERROR. 
(Printed Record, 144-5.) 


Now comes the said The Cincinnati Inclined Plane 
Railway Company, and says that it was the defendant in a 
certain action brought in the Superior Court of Cincin- 
nati, on the 12th day of December, 1890, by the said City 
of Cincinnati, as plaintiff, said case being entitled The City 
of Cincinnati, plaintiff, v. The Cincinnati Inclined Plane Rail- 
way Company, defendant, No. 45,202. It further says that 
such proceedings were thereafter had in said cause, that on 
the 21st day of October, 1893, the said Superior Court of 
Cincinuati, in general term, gave judgment in said case in 
favor of said City of Cincinnati and against this plaintiff 
in error, said case being reserved from the special term to 
the general term of said court. 3 

And said The Cincinnati Inclined Plane Railway 
Company says that there is error in said judgment of said 
Superior Court of Cincinnati in general term, in this, to- 
wit: 2 

1. That said judgment is contrary to the evidence. 

2. Contrary to the law. 

3. That the findings and judgment of said court in 
general term should according to the law have been in favor 


13 


of this plaintiff in error and against said defendant in 
error. 

Wherefore, plaintiff in error prays that said judgment 
of said Superior Court may he reversed, and that this 
court enter such jadgment as the court below should have 
entered, and that plaintiff in error be restored to all things 
it has lost by reason of said errors committed by said Su- 
perior Court of Cincinnati. 


POINTS FOR ORAL ARGUMENT. 


The principal questions in this case are as follows: 


I; 


What is the proper construction of the act of March 
30, 1877, 74 Ohio L., p. 66, which provides 


‘That any inclined plane railway or railroad company here- 
tofore, or that may hereafter be organized under the act of May 1, 
1852, entitled ‘ An act to provide for the creation and regulation 
of incorporated companies in the State of Ohio,’ shall have power 
to hold, lease or purchase and maintain and operate such portion of 
any street railroad leading to or connected with the inclined plane 
as may be necessary for the convenient dispatch of its business, 
upon the same terms and conditions on which it holds, maintains and 
operates its inclined plane.” 


1. The court below was of opinion— 


‘That the intention of this law was simply to invest inclined 
plane railway companies with the corporate power to acquire and 
operate street railroad routes leading to, or connected with, their 
inclined plane, that in the ‘acquirement of such routes such 
companies stood in the same position as other persons and other street 
railroad companies, and that when such routes are acquired by such 
companies, they are bound by all the provisions of the original grant 


14 


by the city, and that none of the provisions of the same are abro- 
gated by such acquirement. 

‘««The terms and conditions’ referred to in the act of 1877 are 
the terms and conditions of the act of May 1, 1852 (50 & 274), 
relating to steam railways, aud under which, as we have seen, the 
defendant was incorporated. 

‘In section 12, of that act, provision is made for the occupa- 
tion of streets, by such companies, with their tracks. The section 
is as follows: 

‘«<Tf it shall be necessary, in the location of any part of any 
railroad to occupy any road, street, alley or public way, or ground 
of any kind, or any part thereof, it shall be competent for a munici- 
pal or other corporation or public officer or public authority, owning 
or having charge thereof, and the railroad company, to agree upon 
the manner and upon the terms and conditions upon which the 
same may be used or occupied,’ ete., etc. 

‘‘ It was in obedience to the requirements of this section that 
the resolution of the City Council in 1871 was necessary, in order to 
enable the Inclined Railway Company to occupy the hillside streets 
which ran .across the line of its route; and in agreeing with the 
company for such occupation, the city was not restricted, except as 
provided in the act of 1852. . . 

‘* But when the Inclined Plane Company was, by the act of 
1877, invested with corporate power to acquire and operate street 
railroads upon the terms and conditions upon which it acquired and 
operated its inclined plane, it followed, of course, that it could oc- 
cupy the streets of a municipality only with the consent and upon 
the terms and conditions imposed by such municipality as provided 
in section 12, of the act of 1852. But while the only restrictions 
placed upon the municipality and the Inclined Plane Company 
when they entered into an agreement for the occupation of such 
streets by such company, as a steam railway, were the restrictions 
contained in the act of 1852. Yet when the city and such com- 
pany sought to make an agreement for the occupation of the streets 
for street railroad purposes by virtue of the new corporate power 
conferred on the company by the act of 1877, it necessarily fol- 
lowed that they were also restricted by all the laws which were in 
existence with reference to street railroad grants.” Vol. 30 Weekly 
Law Bulletin, p. 325. 


In another part of the opinion the court says: 


“Tt requires but the mere reading of the act to see that it 


15 


makes no grant to the Inclined Plane Company of any street rail- 
road franchise, but merely grants to it the power to hold, lease or 
purchase and maintain and operate such portion of any street rail- 
road leading to and connected with the inclined plane as may be 
necessary for its convenient dispatch of its business, and that this 
grant of power is ‘upon the same terms and conditions on which it 
holds, maintains and operates its inclined plane.’” Vol. 30 Weekly 
Law Bulletin, p. 324. 


It would seem that one part of this reasoning answered 
the other. If, when the company acquired the right to 
cross, with its inclined plane, the streets on the hillside, it 
‘did so under the steam railroad law, upon the terms and 
conditions therein provided, it would necessarily follow 
from the very words of the act of March 80, 1877, it would 
hold and maintain the street railroads acquired under thrat 
act upon the same terms and conditions. 

And the conditions of affairs, as disclosed by the record, 
warranted this conclusion. 

The inclined plane was constructed in 1871 and put in 
operation March 12, 1872. 


Doherty’s testimony, Record, p. 34. 


Under the ordinance of December 1, 1871, authorizing 
the extension of the railway of the company from the head 
of Muin street to Fifth street, permission was granted it ‘to 
lay a double track from a point at or near the head of Main 
street on the north side of Mulberry street; thence south 
along Main street to Liberty street ; thence west on Liberty 
street to Walnut street; thence south on Walnut street to 
Fifth street market-space; thence easton Fifth street mar- 
ket-space.” The grant was made under the 12th section of 
the act of May 1, 1852, without limitation as to time. 

Exhibit 19, printed Record, pp. 85, 86, and 87. 


Only the double tracks from the head of Main street to 
~ Liberty were built under this grant, because the Mt. Au- 


16 


burn road, Route 8, was about to be sold, as it was in 1878, 
and bought by Smith, Hill and Doherty, who were the 
‘principal stockholders in the Inclined Plane Railway Com- 


pany, and the tracks built by the company to Liberty street, 


where they joined Route 8 tracks, made it unnecessary, in 
order to accommodate public travel to and from Fifth street 
Market-space, to construct. 


Doherty’s testimony, Record, pp. 30 and 34, 


When, therefore, the general assembly passed the act 
of March 30, 1877, it is not a violent presumption that its 
members had in view such a case as was presented by this 
condition of affairs. 

Grants of privileges to corporations are not made for 
the profit of the proprietors, but for the benefit of the 
public. | 

Commonwealth v. Temple, 14 Gray, 76, 77. 


2. All corporate franchises are derived from the state. 


‘‘ Having received these corporate franchises from the state, they 
hold them in implied trust for the benefit of the community at large 
and subject to the constitutional grant of legislative power to con- 
trol the exercises of those franchises in the future as the public 
good may require. A franchise, if granted by the state with a 
reservation of the right of appeal, must, be regarded as a mere 
privilege while it is suffered to continue, and the legislature may 
take it away at any time; and the parties must rely for the perpe- 
tuity and integrity of the franchise granted to them solely upon the 
sovereign grantor. Pratt v. Brown, 3 Wis. 608; Cooley on Consti- 
tutional Limitations, 472 (6th ed.). But in the absence of such a 
reservation, its force and effect, may be attained through the consti- 
tutional power vested in the general assembly to alter or repeal, 
from time to time, all general laws under which corporations are 
formed, and to alter, revoke or repeal all special privileges or im- 
munities that may have been granted.” 

Railway Co. v. Telegraph Ass’n, 48 Ohio St. 390, per Dick- 
man, J., pp. 432, 433. 


* 


al! 


And see 
State v. Gas Co., 18 Ohio St. 262. 
Sims v. Street R. R. Co., 837 Ohio St. 556. 


The fourth and fifth syllabi of the last case are as fol- 


lows: 


‘‘4, A street railroad corporation, which owns or has the right 
to construct a street railroad within a city or village, may, with the 
permission of the council of such city or village duly granted, ex- 
tend its track beyond the termini named in the certificate of incor- 
poration, subject to the provisions of section 2505 of the Revised 
Statutes, as corrected. (77 Ohio L. 42.) 

5. The corporate power to make such an extension is conferred 
by statutes under which the company is incorporated and is acting. 
The ordinance granting permission to extend the track is not an act 
conferring corporate powers. It is merely a permit to the corpora- © 
tion to exercise the corporate powers conferred by general law; 
therefore such an ordinance is not an act conferring corporate 
powers, which is prohibited by article 13, section 1, of the constitu- 
tion of Ohio.” 


These statements of law bear out the contention of 
the defendant below, that the ownership of the streets is 
in the public represented by the state, and that the legisla- 
ture thereof has. full control over them so far as it acts 
within the purposes contemplated by the dedication of the 
same, and that the city acts merely as the agent of the 
state and only by reason of its permission, and therefore 
whatever power the state may give to the city in that re- 
spect, may also at any time be changed or revoked by it. - 

3. lt was intimated in the opinion by the court below, 
but not relied on, that the grant of permission to cross the 
streets named in the resolution of January, 1871, which, it 


_was conceded, was properly passed under the twelfth sec- 


tion of the act of May 1, 1852, limited the time of occu- 


18 


pancy to twenty years from the date of its acceptance, 
June 380, 1871. 

a. Conceding that this grant was so limited, it is to be 
said about it that the limitation as to time was repugnant 
to the grant, and therefore void. The company had the 
right to condemn under the twelfth section, and if it had 
resorted to that right, it must have condemned “ once for 
all.” 

As was said by Brinkerhoff, C.J., in the case of Currier 
v. UM. & C. BR. &. Co., 11 Ohio St. 231-2, “ the work,” that 
is, the road contemplated by the charter, is a permanent 
thing; the lands to be taken for it, it is evident, were de- 
signed to be taken permanently, once for all. ‘No such 
thing as a temporary appropriation of land is, in the char- 
ter, expressly mentioned, nor does it anywhere appear to 
have entered the mind of the legislature.” This is equally 
true of steam railroad companies organized under the act 
of May 1, 1852. 3 

b. But if the occupancy of the streets could be limited, 
that would not destroy the inclined plane, for that was 
built on the private property of the company, and the oe- 
cupancy of the streets crossed consisted only of the wooden 
piers or abutments constructed on the inside of their curb 
lines to support the bridges spanning the streets. As the 
company owns the lands abutting ou either side of these 
streets, all it would have to do, and what it would long 
since have done had it not been vexed and harassed by 
the present litigation and the telephone case, would be to 
build abutments on its own ground, supporting iron 
bridges of longer span, and thus improve the grade of the 
inclined plane. 

c. It is to be noted, however, that this action was not 
commenced until December 12, 1890, and that the limita- 


19 


tion in the resolution of June, 1871, authorizing the cross- 
ing, did not expire until June 30, 1891, more than six 
months after this action was brought. 


LE. 


The city is estopped upon the facts stated and proved 
in this case from having the relief granted by the decree 
herein. 


1. “The distinction between legal and equitable rights exists 
in the subjects to which they relate, and is not affected by the form 
or mode of procedure that may be prescribed for their enforcement. 
The code abolished the distinction between actions at law and suits 
in equity, and substituted in their place one form of action; yet, 
the rights and liabilities of parties, legal and equitable, as distin- 
guished from the mode of procedure, remain the same since, as _ be- 
fore, the adoption of the Code.” 

Per White, J., in Dixon v. Caldwell, 15 Ohio St. 415. 


2. ‘‘ Whilst municipal corporations are not, as respects public 
rights, within ordinary limitation statutes, still, the principle of an 
estoppel. in pais is applicable in such cases, as this leaves the court 
to decide the question, not by mere lapse of time, but by all the 
circumstances of the case, and to hold the public estopped or not, 
as right and justice may require.” 

Chicago, R. I. & P. R. R. Co. v. City of Joliet, 79 Ill. 26. 


To the same eftect— 

Chicago §& N. W. R. R. Co. v. The People ex rel. The 
City of Hilgin, 91 Ills. 251. 

Spokane St. R’y Co. v. The City of See Falls, 33 
Pac. Rep. 1072. 

Township of Pennbroke v. R. &. Co., 14 American 
and English R. R. Cases, 117. 

Cincinnati v. Evans, 5 Ohio St. 594. 


20 


And see observation on same, per Peck, in Lane v. 
Kennedy, 13 Ohio St. 48-49. 

Dillon on Municipal Corporations, section 5338, after 
discussing the doctrine of pleading the Statute of Limita- 
tions against a municipal corporation, in a case of this 


character, concludes as follows: 


‘But there is no danger in recognizing the principle of an es- 
toppel in pais to such cases, as this leaves the courts to decide the 
question, not by the mere lapse of time, but by all the circum- 
stances of the case, to bold the public estopped or not, as right 
and justice may require.” 


This action, so far as relates to the injunction prayed 
for, if sustainable at all, must be brought under sections 
1777, 1778, 1779, of the Revised Statutes, authorizing the 
solicitor in certain cases to apply for a forfeiture, but in 
such actions the court is to make such order ‘as the equity 
and justice of the case demands,” section 1779. The gen- 
eral rule is that equity will not enforce a forfeiture. 

1 Pomeroy’s Equity, 459, 460. 
Oil Creek R. R.v. A. & G. KR. R., 59 Pa. St. Sb. 
Coe v. Piqua RA. R., 10 Ohio St. 372, 411, 412. 


4. Applying these principles of law, and even admit- 
ting that as against the Mt. Auburn Street Railroad Com- 
pany the city could claim a cessation of the grant under 
the ordinance of August 19, 1864, yet by the subsequent act 
of March 80,1877 ana‘the corporate acts of the city as 
averred in the answer and as shown in evidence, upon the 
faith of which the company has incurred large expendi- 
tures and submitted to great inconveniences, it has de- 
prived itself of the right to interfere in any way with the 
company’s present use of its road. | 


21 


See— 
: 1. Doherty’s Testimony, p. 35. 
2. Littell’s, pp. 46 to 54. 
3. Mortgages, ante, pp. 9 and 10. 


5. It is also to be noticed that the conncil of Cincin- 
nati (board -of legislation), which, under section 2640 of 
the municipal code, has the care, supervision, and control 
of all public highways, ete., of the city, has not author- 
ized the bringing of this action or in any way questioned 
the right of the company to maintain and operate its in- 
clined plane and railroads. 

6. Quere—Is not the maintaining in the streets the 
tracks under a void or expired grant a public nuisance; 
and, if so, is not the remedy by quo warranto proceedings? 

See Ait’y-Gen’l v. Utica Ins. Co., 2 Johns. Chan. 371- 
376, 3879, 380. 


IIT. 


As to the right to recover car license. 


1. Contracts made with or on behalf of the city must 
receive the same construction and are subject to the same 
rules of law as contracts between natural persons. 

Pe. oot... RR. Co. v. City, 16 Weekly. Law 
Bulletin, 868 ; affirmed in 24 Weekly Law Bull. 
416. 

Philadelphia Gas cases, 81 Penn. St. 175, 180. 


‘‘ Whenever a contract in any form comes before the courts, 
the rights and obligations of the contracting parties must be ad- 
justed upon the same principles as if both contracting parties were 


_ 3 


22 


private persons. Both stand upon an equality before the law, and 
the sovereign is merged in the dealer, contractor, and suitor, etc.” 
See People v. Stephens et.al., per Allen, J., 71 N. Y. Reports, 
550. 

2. There is no privity of contract between the city and 
the Inclined Plane Railway Company. 

The contract relied upon was made with the Mt. Au- 
burn Street Railroad Company, which gave bond-for the 
faithful performance of its obligations. 

Exhibit 25, Record, p. 110. 


There is no ground for insisting that the Cincinnati 
Inclined Plane Railway Company succeeded to the liability 
of the Mt. Auburn Company. The former did not take 
the property with any such onus. The lability vested 
wholly on the contract of the parties by whom it was 
made. It did not run with the property into the hands 
of those who acquired it by foreclosure. They did not as- 
sume the lability expressly or by implication. Hence, 
neither they, nor those claiming under them, are in any 
way bound. The foundation of the claim as to both is res 
inter alios acta. 

Sullivan v. Portland &. fh. Co., 94 U.S. 806, 810-811. 


And see Morgan v. State of Louisiana, 98 U. 8. 217- 
223. 


The doctrine in regard to covenants in leases to pay 
rent, has no application. to this present case. This is a 
suit in equity, and even if it were at law, there is no cove- 
nant or privity of estate between the parties. The cove- 
nants that were made in relation to Route 8 were in the 
contract between the city and the Mt. Auburn Street Rail- 
road Company, and the Inclined Plane Company has not 
become the assignee of the whole of the route. 

See Doherty’s testimony, pp. 33 and 34. 
Lease, Exhibit 35, page 125; Exhibit 25, p. 110. 


23 


‘Where a lessee assigns a part of the premises leased to a 
third person, for the whole period of the time of the lease, it is but 
an underleasing, and the lessor can sustain no action on the lease 
for rent against said assignee.” 

Fulton v Stewart, 2 Ohio Rep. 216, and see argument in case. 


There was no covenant by the company in the lease 
from Smith, Hill, and Doherty by which it was to pay ear 
license. 


Exhibit 85, Record, p. 125. 


3. The money claim in this case is a stale one, and that 
defense is not necessary to set up by the answer. A court 
of equity always refuses its aid to stale demands without 
regard to the statute of limitations. 

Sullivan v. Portland, 94 U.S. 811-812. 
Brown v. County of Buena Vista, 95 U.S. 157, 160-1. 
Paschall v. Hinderer, 28 Ohio St. 580-581. 


4. As to laches. No demand was ever made on Smith, 
Hill, and Doherty, or on the company for car license. 
Doherty’s testimony, Record, p. 82. 
Martin v. Gray, 142 U.S. 236, 2389. 
U.S. v. Des Moines Co., 142 U.S.-511, 538-9. 
Hammond v. Hopkins, 143 U. 8. 224, 250. 


While laches can not be imputed to the state, yet when 
the state, or the United States, is suing as a representative 
of private interests, laches can be imputed to either. 

Hammond v. Hopkins, 143 U.S. 224, 250. 


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December 1, 1871 (Exhibit 19, pp. 85-6), and th 


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ib. 


The grants to nee the Pre aauee the oré 


of October 27, 1875 (Exhibit 20, p. 67), were m: 
company under the power given in section 12 of 
May 1, 1852, now section 3283 of the Revised St: 
would have been good under the street railway ac 
See Sims v. Street R. BR. Co., 37 Ohio Be 55 
opinion of Court. 


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